Mayor Rob Ford’s threat to file defamation suits against former employees could just be a desperate attempt to stifle them.

Toronto Mayor Rob Ford threatened on Nov. 14, 2013, to sue former staff members who gave statements to police about him.

By:Murdoch Davis Published on Sat Nov 16 2013

Trying to figure out why Rob Ford does anything is a loser’s game. But the most likely reason for Thursday’s lawsuit threats against former staff members is to chill them from further talk of his conduct.

To file defamation suits against former employees who made statements to police investigators, after not suing in the face of months of media reports that disgraced him, is bizarre even for Ford. It shows a misunderstanding of defamation law, and perhaps desperation to stifle these individuals from telling more about him.

Libel and slander law is misunderstood by politicians, the public, journalists and most lawyers. As far as determining the truth, a suit for libel (over published words) or slander (spoken words) is rarely helpful. But the chilling effect on immediate exploration of the truth can be great. People facing such a suit get nervous about saying anything further. Routinely, lawyers advise them not to. That is often the main effect sought by the person suing.

About half the time someone threatens suit, they don’t even follow through with a formal notice — a simple, cheap one-pager. About half such notices aren’t followed up with a detailed claim. It’s rare that those get to court. If they do, it will be years later. The process is long, tedious and costly. Most cases whither away or are settled on nuisance value.

In the past several years, the Star has had two suits go to trial. One brought a 2009 Supreme Court decision protecting public interest journalism. The other trial, about stories published in 2008, ended in July. Its verdict is in limbo due to the untimely death of the judge. In more than 30 years as an editor in several cities prior to that, I saw only a few other cases go to pre-trial examination and none to trial.

But the immediate chill of the initial threat can be effective, at little cost, especially against individuals. And the person threatening suit is often seen as having proved something — “Well, he’s suing, maybe it isn’t true.”

But anyone can sue anyone over anything. Whether they can win is the question. And Ford can’t.

The suit wouldn’t even get to trial. The ex-staffers’ statements were in documents police filed to get phone tap permission. Those were released last week by a court (such documents are normally public once the taps are off). The statements are thus protected by “qualified privilege,” which protects people from defamation suits when they offer views in good faith in the course of fulfilling a moral, legal or professional duty. Qualified privilege is essential to police investigations and to protecting cooperative citizens. Ford could only win a suit about his ex-staffers’ statements if he could show they were knowingly false and for the purpose of harming him. Media reports of those statements are similarly protected.

And even if qualified privilege weren’t a factor, Ford wouldn’t win.

Defamation suits hinge on the truth. Anything that damages a person’s reputation is defamatory, but it’s not libel or slander if it is true. That seems clear cut, but it’s not.

These are civil suits (between private parties) rather than criminal matters, in which the state is the prosecutor. They are more akin to suits about car accidents or property disputes than criminal cases. In civil suits, the state only provides the legal framework under which suits are fought, and the courtroom and judge (with the unsuccessful party having to pay a lot of money in court costs).

Most importantly, civil suits are not determined on the high standard of criminal courts, “proof beyond a reasonable doubt.” The civil standard is “on the balance of probability” — simply, is it more probably true? A decision comes on what is most likely, not what is certain.

All that leads to doubt that Ford will follow through on his threats, stubborn though he is. If his suit got to trial — and again, it wouldn’t — he’d face vigorous questioning under oath. His pants-on-fire record on everything from his drunk-driving conviction to his abusive public behaviour to his use of crack cocaine would be relevant. The credibility of anyone suing for defamation is critical; a good defence lawyer would have a blast testing Ford’s.

It’s curious that Ford threatens suit against former staffers who till now have been loyally silent other than to talk to police. Does he really want to make them testify under oath?

In any case, Ford has no chance of winning the suits he has threatened.

He might have a chance of bullying people into not saying anything further, though. He’s good at bullying.

Murdoch Davis is former executive editor of the Star. He has worked closely with Canada’s leading media lawyers for more than 30 years.